3rd Sub. H.B. 385
LEGISLATIVE GENERAL COUNSEL
6 Approved for Filing: J. Rogers 6
6 02-23-23 7:33 PM 6
H.B. 385
3rd Sub. (Cherry)
Representative Nelson T. Abbott proposes the following substitute bill:
1 MENTALLY ILL OFFENDERS AMENDMENTS
2 2023 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Nelson T. Abbott
5 Senate Sponsor: Todd D. Weiler
6
7LONG TITLE
8General Description:
9 This bill concerns offenders with a mental condition.
10Highlighted Provisions:
11 This bill:
12 <defines and modifies terms;
13 <modifies when certain defendants are eligible for a criminal defense based on a
14mental condition;
15 <modifies when certain defendants may receive probation, supervised release, or a
16reduction to a lower category of offense under specified circumstances;
17 <changes "guilty with a mental illness" to "guilty with a mental condition";
18 <amends eligibility, procedures, and requirements concerning a plea of guilty with a
19mental condition;
20 <amends certain provisions concerning the sentencing and commitment of an
21offender with a mental condition; and
22 <makes technical and conforming changes.
23Money Appropriated in this Bill:
24 None
25Other Special Clauses:
*HB0385S03* 3rd Sub. (Cherry) H.B. 385 02-23-23 7:33 PM
- 2 -
26 This bill provides revisor instructions.
27Utah Code Sections Affected:
28AMENDS:
29 53-10-208.1, as last amended by Laws of Utah 2021, Chapter 159
30 53-10-403.5, as last amended by Laws of Utah 2020, Chapter 415
31 62A-15-610, as last amended by Laws of Utah 2011, Chapter 366
32 62A-15-623, as renumbered and amended by Laws of Utah 2002, Fifth Special Session,
33Chapter 8
34 62A-15-902, as last amended by Laws of Utah 2011, Chapter 366
35 76-2-305, as last amended by Laws of Utah 2016, Chapter 115
36 76-3-201, as repealed and reenacted by Laws of Utah 2021, Chapter 260 and last
37amended by Coordination Clause, Laws of Utah 2021, Chapter 261
38 76-3-406, as last amended by Laws of Utah 2022, Chapter 181
39 76-5-205.5, as last amended by Laws of Utah 2022, Chapter 181
40 76-5-303.5, as last amended by Laws of Utah 2022, Chapter 181
41 76-10-1311, as last amended by Laws of Utah 2008, Chapter 382
42 77-13-1, as last amended by Laws of Utah 2011, Chapter 366
43 77-16a-101, as last amended by Laws of Utah 2011, Chapter 366
44 77-16a-102, as last amended by Laws of Utah 2019, Chapter 312
45 77-16a-104, as last amended by Laws of Utah 2011, Chapter 366
46 77-16a-201, as last amended by Laws of Utah 2018, Chapter 334
47 77-16a-202, as last amended by Laws of Utah 2011, Chapter 366
48 77-16a-203, as last amended by Laws of Utah 2011, Chapter 366
49 77-16a-204, as last amended by Laws of Utah 2011, Chapter 366
50 77-16a-205, as last amended by Laws of Utah 2018, Chapter 334
51 77-16a-301, as last amended by Laws of Utah 2019, Chapter 312
52 77-16a-302, as last amended by Laws of Utah 2011, Chapter 366
53 77-16a-304, as last amended by Laws of Utah 2011, Chapter 366
54 77-16a-305, as last amended by Laws of Utah 1993, Chapter 285
55 77-16a-306, as last amended by Laws of Utah 2011, Chapter 366
56 77-27-2, as last amended by Laws of Utah 2021, Chapter 260 02-23-23 7:33 PM 3rd Sub. (Cherry) H.B. 385
- 3 -
57 77-27-5.3, as last amended by Laws of Utah 2011, Chapter 366
58 77-27-10.5, as last amended by Laws of Utah 2011, Chapter 366
59 77-36-1.1, as last amended by Laws of Utah 2021, Chapter 213
60 77-38-302, as last amended by Laws of Utah 2020, Chapter 230
61 77-38b-102, as last amended by Laws of Utah 2022, Chapter 359
62 78A-2-302, as last amended by Laws of Utah 2022, Chapter 272
63 78B-7-901, as enacted by Laws of Utah 2020, Chapter 142
64 80-2-1004, as renumbered and amended by Laws of Utah 2022, Chapter 334
65REPEALS AND REENACTS:
66 77-16a-103, as last amended by Laws of Utah 2011, Chapter 366
67
68Be it enacted by the Legislature of the state of Utah:
69 Section 1. Section 53-10-208.1 is amended to read:
70 53-10-208.1. Magistrates and court clerks to supply information.
71 (1) Every magistrate or clerk of a court responsible for court records in this state shall,
72within 30 days of the disposition and on forms and in the manner provided by the division,
73furnish the division with information pertaining to:
74 (a) all dispositions of criminal matters, including:
75 (i) guilty pleas;
76 (ii) convictions;
77 (iii) dismissals;
78 (iv) acquittals;
79 (v) pleas held in abeyance;
80 (vi) judgments of not guilty by reason of insanity;
81 (vii) judgments of guilty with a mental [illness] condition;
82 (viii) finding of mental incompetence to stand trial; and
83 (ix) probations granted;
84 (b) orders of civil commitment under the terms of Section 62A-15-631;
85 (c) the issuance, recall, cancellation, or modification of all warrants of arrest or
86commitment as described in Rule 6, Utah Rules of Criminal Procedure and Section 78B-6-303,
87within one day of the action and in a manner provided by the division; and 3rd Sub. (Cherry) H.B. 385 02-23-23 7:33 PM
- 4 -
88 (d) protective orders issued after notice and hearing, pursuant to:
89 (i) Title 77, Chapter 36, Cohabitant Abuse Procedures Act;
90 (ii) Title 78B, Chapter 7, Part 4, Dating Violence Protective Orders;
91 (iii) Title 78B, Chapter 7, Part 5, Sexual Violence Protective Orders;
92 (iv) Title 78B, Chapter 7, Part 6, Cohabitant Abuse Protective Orders; or
93 (v) Title 78B, Chapter 7, Part 8, Criminal Protective Orders.
94 (2) The court in the county where a determination or finding was made shall transmit a
95record of the determination or finding to the bureau no later than 48 hours after the
96determination is made, excluding Saturdays, Sundays, and legal holidays, if an individual is:
97 (a) adjudicated as a mental defective; or
98 (b) involuntarily committed to a mental institution in accordance with Subsection
9962A-15-631(16).
100 (3) The record described in Subsection (2) shall include:
101 (a) an agency record identifier;
102 (b) the individual's name, sex, race, and date of birth; and
103 (c) the individual's social security number, government issued driver license or
104identification number, alien registration number, government passport number, state
105identification number, or FBI number.
106 Section 2. Section 53-10-403.5 is amended to read:
107 53-10-403.5. Definitions.
108 As used in Sections 53-10-403, 53-10-404, 53-10-404.5, 53-10-405, and 53-10-406:
109 (1) "Bureau" means the Bureau of Forensic Services.
110 (2) "Combined DNA Index System" or "CODIS" means the program operated by the
111Federal Bureau of Investigation to support criminal justice DNA databases and the software
112used to run the databases.
113 (3) "Conviction" means:
114 (a) a verdict or conviction;
115 (b) a plea of guilty or guilty [and mentally ill] with a mental condition;
116 (c) a plea of no contest; or
117 (d) the acceptance by the court of a plea in abeyance.
118 (4) "DNA" means deoxyribonucleic acid. 02-23-23 7:33 PM 3rd Sub. (Cherry) H.B. 385
- 5 -
119 (5) "DNA specimen" or "specimen" means a biological sample of a person's saliva or
120blood, a biological sample from a crime scene, or a sample collected as part of an investigation.
121 (6) "Final judgment" means a judgment, including any supporting opinion, concerning
122which all appellate remedies have been exhausted or the time for appeal has expired.
123 (7) "Rapid DNA" means the fully automated process of developing a DNA profile.
124 (8) "Violent felony" means any offense under Section 76-3-203.5.
125 Section 3. Section 62A-15-610 is amended to read:
126 62A-15-610. Objectives of state hospital and other facilities -- Persons who may
127be admitted to state hospital.
128 (1) The objectives of the state hospital and other mental health facilities shall be to care
129for all persons within this state who are subject to the provisions of this chapter; and to furnish
130them with the proper attendance, medical treatment, seclusion, rest, restraint, amusement,
131occupation, and support that is conducive to their physical and mental well-being.
132 (2) Only the following persons may be admitted to the state hospital:
133 (a) persons 18 years [of age] old and older who meet the criteria necessary for
134commitment under this part and who have severe mental disorders for whom no appropriate,
135less restrictive treatment alternative is available;
136 (b) persons under 18 years [of age] old who meet the criteria necessary for commitment
137under Part 7, Commitment of Persons Under Age 18 to Division of Substance Abuse and
138Mental Health, and for whom no less restrictive alternative is available;
139 (c) persons adjudicated and found to be guilty with a mental [illness under Title 77,
140Chapter 16a, Commitment and Treatment of Persons with a Mental Illness] condition under
141Title 77, Chapter 16a, Commitment and Treatment of Individuals with a Mental Condition;
142 (d) persons adjudicated and found to be not guilty by reason of insanity who are under
143a subsequent commitment order because they have a mental illness and are a danger to
144themselves or others, under Section 77-16a-302;
145 (e) persons found incompetent to proceed under Section 77-15-6;
146 (f) persons who require an examination under Title 77, Utah Code of Criminal
147Procedure; and
148 (g) persons in the custody of the Department of Corrections, admitted in accordance
149with Section 62A-15-605.5, giving priority to those persons with severe mental disorders. 3rd Sub. (Cherry) H.B. 385 02-23-23 7:33 PM
- 6 -
150 Section 4. Section 62A-15-623 is amended to read:
151 62A-15-623. Criminal's escape -- Penalty.
152 Any person committed to the state hospital under the provisions of Title 77, Chapter 15,
153Inquiry into Sanity of Defendant, or [Chapter 16a, Commitment and Treatment of Persons with
154a Mental Illness] Chapter 16a, Commitment and Treatment of Individuals with a Mental
155Condition, who escapes or leaves the state hospital without proper legal authority is guilty of a
156class A misdemeanor.
157 Section 5. Section 62A-15-902 is amended to read:
158 62A-15-902. Design and operation -- Security.
159 (1) The forensic mental health facility is a secure treatment facility.
160 (2) (a) The forensic mental health facility accommodates the following populations:
161 (i) prison inmates displaying mental illness, as defined in Section 62A-15-602,
162necessitating treatment in a secure mental health facility;
163 (ii) criminally adjudicated persons found guilty with a mental [illness] condition or
164guilty with a mental [illness] condition at the time of the offense undergoing evaluation for a
165mental [illness under Title 77, Chapter 16a, Commitment and Treatment of Persons with a
166Mental Illness] condition under Title 77, Chapter 16a, Commitment and Treatment of
167Individuals with a Mental Condition;
168 (iii) criminally adjudicated persons undergoing evaluation for competency or found
169guilty with a mental [illness] condition or guilty with a mental [illness] condition at the time of
170the offense under [Title 77, Chapter 16a, Commitment and Treatment of Persons with a Mental
171Illness] Title 77, Chapter 16a, Commitment and Treatment of Individuals with a Mental
172Condition, who also have an intellectual disability;
173 (iv) persons undergoing evaluation for competency or found by a court to be
174incompetent to proceed in accordance with Title 77, Chapter 15, Inquiry into Sanity of
175Defendant, or not guilty by reason of insanity under Title 77, Chapter 14, Defenses;
176 (v) persons who are civilly committed to the custody of a local mental health authority
177in accordance with Title 62A, Chapter 15, Part 6, Utah State Hospital and Other Mental Health
178Facilities, and who may not be properly supervised by the Utah State Hospital because of a lack
179of necessary security, as determined by the superintendent or the superintendent's designee; and
180 (vi) persons ordered to commit themselves to the custody of the Division of Substance 02-23-23 7:33 PM 3rd Sub. (Cherry) H.B. 385
- 7 -
181Abuse and Mental Health for treatment at the Utah State Hospital as a condition of probation or
182stay of sentence pursuant to Title 77, Chapter 18, The Judgment.
183 (b) Placement of an offender in the forensic mental health facility under any category
184described in Subsection (2)(a)(ii), (iii), (iv), or (vi) shall be made on the basis of the offender's
185status as established by the court at the time of adjudication.
186 (c) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
187department shall make rules providing for the allocation of beds to the categories described in
188Subsection (2)(a).
189 (3) The department shall:
190 (a) own and operate the forensic mental health facility;
191 (b) provide and supervise administrative and clinical staff; and
192 (c) provide security staff who are trained as psychiatric technicians.
193 (4) Pursuant to Subsection 62A-15-603(3) the executive director shall designate
194individuals to perform security functions for the state hospital.
195 Section 6. Section 76-2-305 is amended to read:
196 76-2-305. Mental condition -- Use as a defense -- Influence of alcohol or other
197substance voluntarily consumed.
198 (1) As used in this section:
199 (a) (i) "Mental condition" means a mental illness or a mental disability that
200substantially impairs an individual's mental, emotional, or behavioral functioning.
201 (ii) "Mental condition" does not include a mental abnormality that is manifested solely
202by repeated criminal conduct, anti-social behavior, or a substance use disorder.
203 (b) "Mental disability" means an intellectual disability or a neurodevelopmental
204disorder as those terms are defined in the current edition of the Diagnostic and Statistical
205Manual of Mental Disorders published by the American Psychiatric Association.
206 (c) "Mental illness" means the following mental disorders as described in the most
207recent edition of the Diagnostic and Statistical Manual of Mental Disorders published by the
208American Psychiatric Association:
209 (i) schizophrenia spectrum and other psychotic disorders; or
210 (ii) other serious mental health conditions with psychotic features.
211 [(1)] (2) (a) It is a defense to a prosecution under any statute or ordinance that the 3rd Sub. (Cherry) H.B. 385 02-23-23 7:33 PM
- 8 -
212defendant, as a result of a mental [illness] condition, lacked the mental state required as an
213element of the offense charged.
214 (b) [Mental illness] A mental condition is not otherwise a defense, but may be evidence
215in mitigation of the penalty in a capital felony under Section 76-3-207 and may be evidence of
216special mitigation reducing the level of a criminal homicide or attempted criminal homicide
217offense under Section 76-5-205.5.
218 [(2)] (3) The defense defined in this section includes the defenses known as "insanity"
219and "diminished mental capacity."
220 [(3)] (4) A person who asserts a defense of insanity or diminished mental capacity, and
221who is under the influence of voluntarily consumed, injected, or ingested alcohol, controlled
222substances, or volatile substances at the time of the alleged offense is not excused from
223criminal responsibility on the basis of a mental [illness] condition if the alcohol or substance
224caused, triggered, or substantially contributed to the mental [illness] condition.
225 [(4) As used in this section:]
226 [(a) "Intellectual disability" means a significant subaverage general intellectual
227functioning, existing concurrently with deficits in adaptive behavior, and manifested prior to
228age 22.]
229 [(b) (i) "Mental illness" means a mental disease or defect that substantially impairs a
230person's mental, emotional, or behavioral functioning. A mental defect may be a congenital
231condition, the result of injury, or a residual effect of a physical or mental disease and includes,
232but is not limited to, intellectual disability.]
233 [(ii) "Mental illness" does not mean an abnormality manifested primarily by repeated
234criminal conduct.]
235 Section 7. Section 76-3-201 is amended to read:
236 76-3-201. Sentences or combination of sentences allowed -- Restitution and other
237costs -- Civil penalties.
238 (1) As used in this section:
239 (a) (i) "Convicted" means:
240 (A) having entered a plea of guilty, a plea of no contest, or a plea of guilty with a
241mental [illness] condition; or
242 (B) having received a judgment of guilty or a judgment of guilty with a mental [illness] 02-23-23 7:33 PM 3rd Sub. (Cherry) H.B. 385
- 9 -
243condition.
244 (ii) "Convicted" does not include an adjudication of an offense under Section 80-6-701.
245 (b) "Restitution" means the same as that term is defined in Section 77-38b-102.
246 (2) Within the limits provided by this chapter, a court may sentence an individual
247convicted of an offense to any one of the following sentences, or combination of the following
248sentences:
249 (a) to pay a fine;
250 (b) to removal or disqualification from public or private office;
251 (c) except as otherwise provided by law, to probation in accordance with Section
25277-18-105;
253 (d) to imprisonment;
254 (e) on or after April 27, 1992, to life in prison without parole; or
255 (f) to death.
256 (3) (a) This chapter does not deprive a court of authority conferred by law:
257 (i) to forfeit property;
258 (ii) to dissolve a corporation;
259 (iii) to suspend or cancel a license;
260 (iv) to permit removal of an individual from office;
261 (v) to cite for contempt; or
262 (vi) to impose any other civil penalty.
263 (b) A court may include a civil penalty in a sentence.
264 (4) In addition to any other sentence that a sentencing court may impose, the court shall
265order an individual to:
266 (a) pay restitution in accordance with Title 77, Chapter 38b, Crime Victims Restitution
267Act;
268 (b) subject to Subsection (5) and Section 77-32b-104, pay the cost of any government
269transportation if the individual was:
270 (i) transported, in accordance with a court order, from one county to another county
271within the state;
272 (ii) charged with a felony or a misdemeanor; and
273 (iii) convicted of an offense; 3rd Sub. (Cherry) H.B. 385 02-23-23 7:33 PM
- 10 -
274 (c) subject to Section 77-32b-104, pay the cost expended by an appropriate
275governmental entity under Section 77-30-24 for the extradition of the individual if the
276individual:
277 (i) was extradited to this state, under Title 77, Chapter 30, Extradition, to resolve
278pending criminal charges; and
279 (ii) is convicted of an offense in the county for which the individual is returned;
280 (d) subject to Subsection (6) and Subsections 77-32b-104(2), (3), and (4), pay the cost
281of medical care, treatment, hospitalization, and related transportation, as described in Section
28217-50-319, that is provided by a county to the individual while the individual is in a county
283correctional facility before and after sentencing if:
284 (i) the individual is convicted of an offense that results in incarceration in the county
285correctional facility; and
286 (ii) (A) the individual is not a state prisoner housed in the county correctional facility
287through a contract with the Department of Corrections; or
288 (B) the reimbursement does not duplicate the reimbursement under Section 64-13e-104
289if the individual is a state probationary inmate or a state parole inmate; and
290 (e) pay any other cost that the court determines is appropriate under Section
29177-32b-104.
292 (5) (a) The court may not order an individual to pay the costs of government
293transportation under Subsection (4)(b) if:
294 (i) the individual is charged with an infraction or a warrant is issued for an infraction
295on a subsequent failure to appear; or
296 (ii) the individual was not transported in accordance with a court order.
297 (b) (i) The cost of governmental transportation under Subsection (4)(b) shall be
298calculated according to the following schedule:
299 (A) $100 for up to 100 miles that an individual is transported;
300 (B) $200 for 100 miles to 200 miles that an individual is transported; and
301 (C) $350 for 200 miles or more that an individual is transported.
302 (ii) The schedule under Subsection (5)(b)(i) applies to each individual transported
303regardless of the number of individuals transported in a single trip.
304 (6) The cost of medical care under Subsection (4)(d) does not include expenses 02-23-23 7:33 PM 3rd Sub. (Cherry) H.B. 385
- 11 -
305incurred by the county correctional facility in providing reasonable accommodation for an
306inmate qualifying as an individual with a disability as defined and covered by the Americans
307with Disabilities Act, 42 U.S.C. 12101 through 12213, including medical and mental health
308treatment for the inmate's disability.
309 Section 8. Section 76-3-406 is amended to read:
310 76-3-406. Crimes for which probation, suspension of sentence, lower category of
311offense, or hospitalization may not be granted.
312 (1) Notwithstanding Sections 76-3-201 and 77-18-105 and [Title 77, Chapter 16a,
313Commitment and Treatment of Persons with a Mental Illness] Title 77, Chapter 16a,
314Commitment and Treatment of Individuals with a Mental Condition, except as provided in
315Section 76-5-406.5 or Subsection 77-16a-103(6) or (7), probation may not be granted, the
316execution or imposition of sentence may not be suspended, the court may not enter a judgment
317for a lower category of offense, and hospitalization may not be ordered, the effect of which
318would in any way shorten the prison sentence for an individual who commits a capital felony or
319a first degree felony involving:
320 (a) Section 76-5-202, aggravated murder;
321 (b) Section 76-5-203, murder;
322 (c) Section 76-5-301.1, child kidnaping;
323 (d) Section 76-5-302, aggravated kidnaping;
324 (e) Section 76-5-402, rape, if the individual is sentenced under Subsection
32576-5-402(3)(b), (3)(c), or (4);
326 (f) Section 76-5-402.1, rape of a child;
327 (g) Section 76-5-402.2, object rape, if the individual is sentenced under Subsection
32876-5-402.2(3)(b), (3)(c), or (4);
329 (h) Section 76-5-402.3, object rape of a child;
330 (i) Section 76-5-403, forcible sodomy, if the individual is sentenced under Subsection
33176-5-403(3)(b), (3)(c), or (4);
332 (j) Section 76-5-403.1, sodomy on a child;
333 (k) Section 76-5-404, forcible sexual abuse, if the individual is sentenced under
334Subsection 76-5-404(3)(b)(i) or (ii);
335 (l) Section 76-5-404.3, aggravated sexual abuse of a child; 3rd Sub. (Cherry) H.B. 385 02-23-23 7:33 PM
- 12 -
336 (m) Section 76-5-405, aggravated sexual assault; or
337 (n) any attempt to commit a felony listed in Subsection (1)(f), (h), or (j).
338 (2) Except for an offense before the district court in accordance with Section 80-6-502
339or 80-6-504, the provisions of this section do not apply if the sentencing court finds that the
340defendant:
341 (a) was under 18 years old at the time of the offense; and
342 (b) could have been adjudicated in the juvenile court but for the delayed reporting or
343delayed filing of the information.
344 Section 9. Section 76-5-205.5 is amended to read:
345 76-5-205.5. Special mitigation for mental condition or provocation -- Burden of
346proof -- Charge reduction.
347 (1) (a) As used in this section:
348 (i) (A) "Extreme emotional distress" means an overwhelming reaction of anger, shock,
349or grief that:
350 (I) causes the defendant to be incapable of reflection and restraint; and
351 (II) would cause an objectively reasonable person to be incapable of reflection and
352restraint.
353 (B) "Extreme emotional distress" does not include:
354 (I) a condition resulting from [mental illness] a mental condition; or
355 (II) distress that is substantially caused by the defendant's own conduct.
356 (ii) "Mental [illness] condition" means the same as that term is defined in Section
35776-2-305.
358 (b) The terms defined in Section 76-1-101.5 apply to this section.
359 (2) Special mitigation exists when a defendant causes the death of another individual or
360attempts to cause the death of another individual:
361 (a) (i) under circumstances that are not legally justified, but the defendant acts under a
362delusion attributable to a mental [illness] condition;
363 (ii) the nature of the delusion is such that, if the facts existed as the defendant believed
364them to be in the delusional state, those facts would provide a legal justification for the
365defendant's conduct; and
366 (iii) the defendant's actions, in light of the delusion, are reasonable from the objective 02-23-23 7:33 PM 3rd Sub. (Cherry) H.B. 385
- 13 -
367viewpoint of a reasonable person; or
368 (b) except as provided in Subsection (4), under the influence of extreme emotional
369distress that is predominantly caused by the victim's highly provoking act immediately
370preceding the defendant's actions.
371 (3) A defendant who is under the influence of voluntarily consumed, injected, or
372ingested alcohol, controlled substances, or volatile substances at the time of the alleged offense
373may not claim mitigation of the offense under Subsection (2)(a) on the basis of a mental
374[illness] condition if the alcohol or substance causes, triggers, or substantially contributes to the
375defendant's mental [illness] condition.
376 (4) A defendant may not claim special mitigation under Subsection (2)(b) if:
377 (a) the time period after the victim's highly provoking act and before the defendant's
378actions was long enough for an objectively reasonable person to have recovered from the
379extreme emotional distress;
380 (b) the defendant responded to the victim's highly provoking act by inflicting serious or
381substantial bodily injury on the victim over a prolonged period, or by inflicting torture on the
382victim, regardless of whether the victim was conscious during the infliction of serious or
383substantial bodily injury or torture; or
384 (c) the victim's highly provoking act, described in Subsection (2)(b), is comprised of
385words alone.
386 (5) If the trier of fact finds that the elements of aggravated murder, attempted
387aggravated murder, murder, or attempted murder are proven beyond a reasonable doubt, and
388also finds that the existence of special mitigation under this section is established by a
389preponderance of the evidence, the court shall enter a judgment of conviction in accordance
390with Subsection 76-5-202(3)(f)(i), 76-5-202(3)(f)(ii), 76-5-203(3)(b)(i), or 76-5-203(3)(b)(ii),
391respectively.
392 (6) If the issue of special mitigation is submitted to the trier of fact, the trier of fact
393shall return a special verdict at the same time as the general verdict, indicating whether it finds
394special mitigation.
395 (7) (a) If a jury is the trier of fact, a unanimous vote of the jury is required to find
396special mitigation under this section.
397 (b) If the jury unanimously finds that the elements of an offense described in 3rd Sub. (Cherry) H.B. 385 02-23-23 7:33 PM
- 14 -
398Subsection (5) are proven beyond a reasonable doubt, and finds special mitigation by a
399unanimous vote, the jury shall return a general verdict finding the defendant guilty of the
400charged crime and a special verdict indicating special mitigation.
401 (c) If the jury unanimously finds that the elements of an offense described in
402Subsection (5) are proven beyond a reasonable doubt but finds by a unanimous vote that
403special mitigation is not established, or if the jury is unable to unanimously agree that special
404mitigation is established, the jury shall convict the defendant of the greater offense for which
405the prosecution proves all the elements beyond a reasonable doubt.
406 Section 10. Section 76-5-303.5 is amended to read:
407 76-5-303.5. Notification of conviction of custodial interference.
408 (1) As used in this section:
409 (a) (i) "Convicted" means a conviction by plea or verdict or adjudication in juvenile
410court of a crime or offense.
411 (ii) "Convicted" includes:
412 (A) a plea of guilty or guilty [and mentally ill] with a mental condition;
413 (B) a plea of no contest; and
414 (C) the acceptance by the court of a plea in abeyance under Title 77, Chapter 2a, Pleas
415in Abeyance, regardless of whether the charge is subsequently reduced or dismissed in
416accordance with the plea in abeyance agreement.
417 (b) Terms defined in Section 76-1-101.5 apply to this section.
418 (2) If an individual is convicted of custodial interference under Section 76-5-303, the
419court shall notify the Driver License Division, created in Section 53-3-103, of the conviction,
420and whether the conviction is for:
421 (a) a class B misdemeanor, under Subsection 76-5-303(3)(a);
422 (b) a class A misdemeanor, under Subsection 76-5-303(3)(b); or
423 (c) a felony, under Subsection 76-5-303(3)(c).
424 Section 11. Section 76-10-1311 is amended to read:
425 76-10-1311. Mandatory testing -- Retention of offender medical file -- Civil
426liability.
427 (1) A person who has entered a plea of guilty, a plea of no contest, a plea of guilty [and
428mentally ill] with a mental condition, or been found guilty for violation of Section 76-10-1302, 02-23-23 7:33 PM 3rd Sub. (Cherry) H.B. 385
- 15 -
42976-10-1303, or 76-10-1313 shall be required to submit to a mandatory test to determine if the
430offender is an HIV positive individual. The mandatory test shall be required and conducted
431prior to sentencing.
432 (2) If the mandatory test has not been conducted prior to sentencing, and the convicted
433offender is already confined in a county jail or state prison, such person shall be tested while in
434confinement.
435 (3) The local law enforcement agency shall cause the blood specimen of the offender as
436defined in Subsection (1) confined in county jail to be taken and tested.
437 (4) The Department of Corrections shall cause the blood specimen of the offender
438defined in Subsection (1) confined in any state prison to be taken and tested.
439 (5) The local law enforcement agency shall collect and retain in the offender's medical
440file the following data:
441 (a) the HIV infection test results;
442 (b) a copy of the written notice as provided in Section 76-10-1312;
443 (c) photographic identification; and
444 (d) fingerprint identification.
445 (6) The local law enforcement agency shall classify the medical file as a private record
446pursuant to Subsection 63G-2-302(1)(b) or a controlled record pursuant to Section 63G-2-304.
447 (7) The person tested shall be responsible for the costs of testing, unless the person is
448indigent. The costs will then be paid by the local law enforcement agency or the Department of
449Corrections from the General Fund.
450 (8) (a) The laboratory performing testing shall report test results to only designated
451officials in the Department of Corrections, the Department of Health, and the local law
452enforcement agency submitting the blood specimen.
453 (b) Each department or agency shall designate those officials by written policy.
454 (c) Designated officials may release information identifying an offender under Section
45576-10-1302, 76-10-1303, or 76-10-1313 who has tested HIV positive as provided under
456Subsection 63G-2-202(1) and for purposes of prosecution pursuant to Section 76-10-1309.
457 (9) (a) An employee of the local law enforcement agency, the Department of
458Corrections, or the Department of Health who discloses the HIV test results under this section
459is not civilly liable except when disclosure constitutes fraud or willful misconduct as provided 3rd Sub. (Cherry) H.B. 385 02-23-23 7:33 PM
- 16 -
460in Section 63G-7-202.
461 (b) An employee of the local law enforcement agency, the Department of Corrections,
462or the Department of Health who discloses the HIV test results under this section is not civilly
463or criminally liable, except when disclosure constitutes a knowing violation of Section
46463G-2-801.
465 (10) When the medical file is released as provided in Section 63G-2-803, the local law
466enforcement agency, the Department of Corrections, or the Department of Health or its officers
467or employees are not liable for damages for release of the medical file.
468 Section 12. Section 77-13-1 is amended to read:
469 77-13-1. Kinds of pleas.
470 (1) There are five kinds of pleas to an indictment or information:
471 (a) not guilty;
472 (b) guilty;
473 (c) no contest;
474 (d) not guilty by reason of insanity; and
475 (e) guilty with a mental [illness] condition at the time of the offense.
476 (2) An alternative plea of not guilty or not guilty by reason of insanity may be entered.
477 Section 13. Section 77-16a-101 is amended to read:
478 CHAPTER 16a. COMMITMENT AND TREATMENT OF INDIVIDUALS WITH A
479 MENTAL CONDITION
480 Part 1. Plea and Verdict of Guilty with a Mental Condition
481 77-16a-101. Definitions.
482 As used in this chapter:
483 (1) "Board" means the Board of Pardons and Parole established under Section 77-27-2.
484 (2) "Department" means the Department of Health and Human Services.
485 (3) "Executive director" means the executive director of the Department of Health and
486Human Services.
487 (4) "Forensic evaluator" means a licensed mental health professional who is:
488 (a) not involved in the defendant's treatment; and
489 (b) trained and qualified to conduct a guilty with a mental condition evaluation.
490 (5) "Mental condition" means the same as that term is defined in Section 76-2-305. 02-23-23 7:33 PM 3rd Sub. (Cherry) H.B. 385
- 17 -
491 (6) "Mental disability" means the same as that term is defined in Section 76-2-305.
492 [(4)] (7) "Mental health facility" means the Utah State Hospital or other facility that
493provides mental health services under contract with the division, a local mental health
494authority, or organization that contracts with a local mental health authority.
495 (8) "Mental health supervision" includes regular and periodic activities including:
496 (a) the review of a defendant's assessment, diagnostic formulation, individual service
497plan development, and progress toward completion of care; and
498 (b) identification of barriers to a defendant's care, assistance in removing barriers to a
499defendant's care, continuation of services to a defendant, authorization of care for a defendant,
500and the observation of the delivery of clinical care to a defendant.
501 [(5)] (9) "Mental illness" [is as] means the same as that term is defined in Section
50276-2-305.
503 [(6)] (10) "Offender with a mental [illness] condition" means an individual who has
504been adjudicated guilty with a mental [illness, including an individual who has an intellectual
505disability] condition.
506 (11) "Secure setting" means a jail, prison, or locked inpatient medical facility approved
507by the department.
508 [(7)] (12) "UDC" means the Department of Corrections.
509 Section 14. Section 77-16a-102 is amended to read:
510 77-16a-102. Jury instructions.
511 (1) If a defendant asserts a defense of not guilty by reason of insanity, the court shall
512instruct the jury that the jury may find the defendant:
513 (a) guilty;
514 (b) guilty with a mental [illness] condition at the time of the offense;
515 (c) guilty of a lesser offense;
516 (d) guilty of a lesser offense with a mental [illness] condition at the time of the offense;
517 (e) not guilty by reason of insanity; or
518 (f) not guilty.
519 (2) (a) When a defendant asserts a mental defense pursuant to Section 76-2-305 or
520asserts special mitigation reducing the level of an offense pursuant to Subsection
52176-5-205.5(2)(a), or when the evidence raises the issue and either party requests the instruction, 3rd Sub. (Cherry) H.B. 385 02-23-23 7:33 PM
- 18 -
522the court shall instruct the jury that if the jury finds a defendant guilty by proof beyond a
523reasonable doubt of a charged offense or lesser included offense, the jury shall also return a
524special verdict indicating whether the jury finds that the defendant had a mental [illness]
525condition at the time of the offense.
526 (b) If the jury finds the defendant guilty of the charged offense by proof beyond a
527reasonable doubt, and by special verdict finds the defendant had a mental [illness] condition at
528the time of the offense, the jury shall return the general verdict of "guilty with a mental [illness]
529condition at the time of the offense."
530 (c) If the jury finds the defendant guilty of a lesser offense by proof beyond a
531reasonable doubt, and by special verdict finds the defendant had a mental [illness] condition at
532the time of the offense, the jury shall return the general verdict of "guilty of a lesser offense
533with a mental [illness] condition at the time of the offense."
534 (d) If the jury finds the defendant guilty of the charged offense or a lesser included
535offense and does not find that the defendant had a mental [illness] condition at the time of the
536offense, the jury shall return a verdict of "guilty" of the offense, along with the special verdict
537form indicating that the jury did not find that the defendant had a mental [illness] condition at
538the time of the offense.
539 (e) The special verdict shall be returned by the jury at the same time as the general
540verdict, to indicate the basis for the jury's general verdict.
541 (3) (a) In determining whether a defendant should be found guilty with a mental
542[illness] condition at the time of the offense, the court shall instruct the jury that the standard of
543proof applicable to a finding of mental [illness] condition is by a preponderance of the
544evidence.
545 (b) The court shall also instruct the jury that the standard of preponderance of the
546evidence does not apply to the elements establishing a defendant's guilt, and that the proof of
547the elements establishing a defendant's guilt of an offense must be proven beyond a reasonable
548doubt.
549 (4) (a) When special mitigation based on extreme emotional distress is at issue
550pursuant to Subsection 76-5-205.5(2)(b), the jury shall, in addition to the jury's general verdict,
551return a special verdict.
552 (b) The special verdict shall be returned by the jury at the same time as the general 02-23-23 7:33 PM 3rd Sub. (Cherry) H.B. 385
- 19 -
553verdict, to indicate the basis for the jury's general verdict.
554 Section 15. Section 77-16a-103 is repealed and reenacted to read:
555 77-16a-103. Plea of guilty with a mental condition-- Procedures -- Sentencing --
556Reduction -- Costs.
557 (1) (a) (i) If a defendant wishes to enter a plea of guilty with a mental condition, the
558parties may stipulate as to:
559 (A) whether the defendant had a mental condition at the time of the commission of the
560offense; and
561 (B) whether the defendant could benefit from supervision or treatment.
562 (ii) If the parties stipulate as described in Subsection (1)(a)(i), the court shall enter
563findings consistent with the parties' stipulation if the stipulation is supported by sufficient
564evidence.
565 (b) If the parties do not stipulate to Subsection (1)(a)(i), the court shall hold a hearing
566and determine, by clear and convincing evidence:
567 (i) whether the defendant had a mental condition at the time of the commission of the
568offense; and
569 (ii) whether the defendant could benefit from supervision or treatment.
570 (c) After reviewing the stipulation described in Subsection (1)(a)(i) or conducting a
571hearing under Subsection (1)(b):
572 (i) if the court finds that the defendant had a mental condition at the time of the
573offense, the court shall accept the defendant's plea of guilty with a mental condition; or
574 (ii) if the court finds that the defendant did not have a mental condition at the time of
575the offense, the court may not accept the defendant's plea of guilty with a mental condition.
576 (2) (a) If a defendant wishes to enter a plea of guilty with a mental condition for a
577felony offense and the parties do not stipulate to Subsection (1)(a)(i), before holding the
578hearing described in Subsection (1)(b), the court may order the defendant to submit to an
579examination, which may be conducted only by a forensic evaluator appointed by the
580department, to determine:
581 (i) whether the defendant had a mental condition at the time of the commission of the
582offense;
583 (ii) whether the defendant could benefit from supervision or treatment; or 3rd Sub. (Cherry) H.B. 385 02-23-23 7:33 PM
- 20 -
584 (iii) whether the defendant currently is competent to enter a plea.
585 (b) (i) If a defendant wishes to enter a plea of guilty with a mental condition for a
586misdemeanor offense and the parties do not stipulate to Subsection (1)(a)(i), before holding the
587hearing described in Subsection (1)(b), the court may order the defendant to submit to an
588examination by a forensic evaluator.
589 (ii) Unless otherwise ordered by the court, the examination described in Subsection
590(2)(b)(i) shall determine:
591 (A) whether the defendant had a mental condition at the time of the commission of the
592offense;
593 (B) whether the defendant could benefit from supervision or treatment; or
594 (C) whether the defendant currently is competent to enter a plea.
595 (3) If a defendant relies on a private mental health evaluation in support of the
596defendant's plea of guilty with a mental condition and the parties do not stipulate to Subsection
597(1)(a)(i), upon the request of the prosecutor before the hearing described in Subsection (1)(b),
598the court shall order the defendant to submit to an examination by:
599 (a) the department if the offense is a felony; or
600 (b) the department or a forensic evaluator if the offense is a misdemeanor.
601 (4) If a court finds that a defendant was guilty with a mental condition at the time of
602the offense in accordance with Subsection (1)(c)(i) but would not benefit from available
603supervision or treatment, the court shall hold a sentencing hearing within 45 days of the entry
604of the defendant's plea of guilty with a mental condition.
605 (5) (a) If a court finds that a defendant had a mental condition at the time of the
606commission of the offense, the defendant could benefit from supervision or treatment, and has
607entered a plea of guilty with a mental condition in accordance with Subsection (1)(c)(i), the
608court:
609 (i) shall order:
610 (A) the department to provide a treatment assessment of the defendant and to submit to
611the court treatment recommendations for the defendant; or
612 (B) the defendant to arrange for a treatment assessment of the defendant with a private
613provider and for the private provider to submit to the court treatment recommendations for the
614defendant; 02-23-23 7:33 PM 3rd Sub. (Cherry) H.B. 385
- 21 -
615 (ii) shall schedule a treatment review hearing within 30 days after the day on which the
616court entered the plea of guilty with a mental condition; and
617 (iii) may defer sentencing for up to one year in accordance with Subsection (6), if the
618defendant consents to a deferred sentence.
619 (b) At the treatment review hearing described in Subsection (5)(a)(ii), the court shall:
620 (i) consider all available diagnosis, treatment, and supervision recommendations;
621 (ii) if a party does not agree with treatment recommendations issued by the department
622under Subsection (5)(a)(i)(A), hold a hearing on the issue of the department's recommendations
623and make appropriate modifications to the recommendations if necessary; and
624 (iii) order the defendant to comply with all treatment and supervision recommendations
625that the court finds are in the best interest of the defendant and public safety.
626 (c) (i) In determining treatment and supervision recommendations under Subsection
627(5)(b), the court may order the defendant to be placed in a secure setting as described in
628Subsections (5)(c)(ii) and (iii) if the court finds that the placement would be in the best interest
629of the defendant, a victim of the defendant, or public safety.
630 (ii) (A) If the offense is a class C misdemeanor, the court may not place the defendant
631in a secure setting for more than 90 days.
632 (B) If the offense is a class B misdemeanor, the court may not place the defendant in a
633secure setting for more than six months.
634 (C) If the offense is a class A misdemeanor or a felony, the court may place the
635defendant in a secure setting for up to one year.
636 (iii) The court shall, before making a determination as to a secure setting placement,
637notify the executive director of the proposed placement and provide the department with an
638opportunity to:
639 (A) evaluate the defendant; and
640 (B) make a recommendation regarding placement to the court.
641 (d) If the court determines that the defendant is eligible for supervised release as part of
642the defendant's treatment and supervision recommendations under Subsection (5)(b), except as
643provided in Section 76-3-406, the court may order:
644 (i) if the offense is a felony:
645 (A) supervision by Adult Probation and Parole for a period of up to one year in 3rd Sub. (Cherry) H.B. 385 02-23-23 7:33 PM
- 22 -
646accordance with the applicable supervision provisions described in Title 64, Chapter 13,
647Department of Corrections - State Prison; or
648 (B) supervision including mental health supervision by a public or private entity that
649provides mental or behavioral health services and is approved by the department or the court;
650or
651 (ii) if the offense is a misdemeanor, supervision including mental health supervision
652by:
653 (A) a local mental health authority; or
654 (B) a public or private entity that provides mental or behavioral health services and is
655approved by the department or the court.
656 (e) (i) After the initial review hearing described in Subsection (5)(a), the court shall
657hold periodic review hearings approximately every 90 days, the frequency of which may be
658modified by the court.
659 (ii) At a review hearing described in Subsection (5)(e)(i):
660 (A) the department or the department's designee shall report on the progress of the
661defendant, provide recommendations for the defendant's future care, treatment, and secure or
662unsecure placement, and advise the court on the medical necessity of treatments for the
663defendant;
664 (B) the court shall review the status of the defendant and determine whether any
665changes are needed to the defendant's supervision or treatment plan; and
666 (C) a party may request, if the party has a good faith basis, that the court review or
667change the defendant's placement within a secure or non-secure setting.
668 (f) If a defendant is willfully non-compliant with the treatment or supervision ordered
669by the court under this Subsection (5), the court shall hold an order to show cause hearing to
670determine whether the court should:
671 (i) proceed with sentencing under Subsection (6);
672 (ii) change the defendant's placement to a secure setting;
673 (iii) impose another sanction; or
674 (iv) take no action.
675 (6) (a) The court shall defer sentencing for a defendant who has pleaded guilty with a
676mental condition as described in Subsection (5) until: 02-23-23 7:33 PM 3rd Sub. (Cherry) H.B. 385
- 23 -
677 (i) the court determines, after an order to show cause hearing or a review hearing as
678described in Subsection (5), that:
679 (A) the defendant is willfully non-compliant with treatment or supervision and is
680unlikely to become compliant with further ordered treatment or supervision; or
681 (B) the defendant has reached the maximum benefit of treatment and supervision; or
682 (ii) one year has elapsed after the day on which the court entered the defendant's plea of
683guilty with a mental condition.
684 (b) At the sentencing hearing, the court shall:
685 (i) consider all treatment and supervision that has occurred before the sentencing
686hearing in the defendant's case;
687 (ii) credit any time the defendant has spent in a mental health facility or other
688residential treatment facility or a secure facility against the defendant's sentence;
689 (iii) consider victim input;
690 (iv) consider the best interests of the defendant, including which sentence will help
691prevent the defendant:
692 (A) from losing the defendant's ability to control the defendant's state of mental health;
693and
694 (B) from committing additional criminal conduct related to the defendant's mental
695condition;
696 (v) consider the best interest of public safety; and
697 (vi) consider any other relevant factor or circumstance.
698 (7) Except as provided in Subsection (7)(c), after a defendant who has been sentenced
699under Subsection (6) has completed the defendant's sentence and any probation or parole:
700 (a) notwithstanding the contrary provisions in Subsection 76-3-402(4) or 76-3-406(1),
701the court has jurisdiction to enter a judgment of conviction and shall reduce the judgment of
702conviction for the offense by two degrees from the original offense; and
703 (b) notwithstanding the contrary provisions in Subsection 76-3-402(4) or 76-3-406(1),
704if the prosecuting attorney specifically agrees in writing or on the court record at any time, the
705court has jurisdiction to consider and enter a judgment of conviction and may enter a judgment
706of conviction for the offense that is reduced by up to three degrees from the original offense.
707 (c) If a defendant's probation is revoked and any suspended sentence is imposed, the 3rd Sub. (Cherry) H.B. 385 02-23-23 7:33 PM
- 24 -Senate Committee Amendments 2-27-2023 lp/jr
708defendant may not receive a reduction under this Subsection (7).
709 (8) (a) (i) Except as provided in Subsection (8)(a)(iv), when the offense is a state
710offense, expenses of examination, observation, and treatment for the defendant shall be paid by
711the department when not paid for by the defendant's insurance.
712 (ii) Travel expenses shall be paid by the county where prosecution is commenced.
713 (iii) Expenses of examination for a defendant charged with a violation of a municipal
714or county ordinance shall be paid by the municipality or county that commenced the
715prosecution.
716 (iv) The department is not responsible for payment for an evaluation described in
717Subsection (3)(b) that is conducted by a forensic evaluator who is privately retained by a party.
718 (b) (i) Provisions in this part for the support at public expense of a defendant with a
719mental condition do not release an insurer of a defendant with a mental condition from liability
720for the care or treatment of the defendant with a mental condition.
721 (ii) The department is authorized to collect amounts spent on a defendant with a mental
722condition from an insurer of the defendant with a mental condition.
723 (iii) A health insurance company may not deny coverage for court-ordered treatment or
724supervision of a defendant with a mental condition Öº [that] solely based on the fact that the
724atreatment or supervision is ordered by a court if the treatment or supervision is medically
724bnecessary and »Ö would otherwise be a covered benefit
725under the defendant's insurance plan Öº [based on the fact that the treatment or supervision is
726ordered by a court] »Ö .
727 Section 16. Section 77-16a-104 is amended to read:
728 77-16a-104. Verdict of guilty with a mental condition -- Hearing to determine
729present mental state.
730 (1) Upon a verdict of guilty with a mental [illness] condition for the offense charged, or
731any lesser offense, the court shall conduct a hearing to determine the defendant's present mental
732state.
733 (2) (a) The court may order the department to examine the defendant to determine the
734defendant's mental condition, and may receive the evidence of any public or private expert
735witness offered by the defendant or the prosecutor.
736 (b) The defendant may be placed in the Utah State Hospital for [that] the examination
737described in Subsection (2)(a) only upon approval of the executive director.
738 (3) If the court finds by clear and convincing evidence that the defendant currently has 02-23-23 7:33 PM 3rd Sub. (Cherry) H.B. 385
- 25 -
739a mental [illness] condition, the court shall impose any sentence that could be imposed under
740law upon a defendant who does not have a mental [illness] condition and who is convicted of
741the same offense, and:
742 (a) commit the defendant to the department, in accordance with the provisions of
743Section 77-16a-202, if:
744 (i) the court gives the department the opportunity to provide an evaluation and
745recommendation under Subsection (4); and
746 (ii) the court finds by clear and convincing evidence that:
747 (A) because of the defendant's mental [illness] condition the defendant poses an
748immediate physical danger to self or others, including jeopardizing the defendant's own or
749others' safety, health, or welfare if placed in a correctional or probation setting, or lacks the
750ability to provide the basic necessities of life, such as food, clothing, and shelter, if placed on
751probation; and
752 (B) the department is able to provide the defendant with treatment, care, custody, and
753security that is adequate and appropriate to the defendant's conditions and needs;
754 (b) order probation in accordance with Section 77-16a-201; or
755 (c) if the court determines that commitment to the department under Subsection (3)(a)
756or probation under Subsection (3)(b) is not appropriate, the court shall place the defendant in
757the custody of UDC or a county jail as allowed by law.
758 (4) In order to [insure] ensure that the requirements of Subsection (3)(a) are met, the
759court shall, before making a determination, notify the executive director of the proposed
760placement and provide the department with an opportunity to evaluate the defendant and make
761a recommendation to the court regarding placement prior to commitment.
762 (5) If the court finds that the defendant does not currently have a mental [illness]
763condition, the court shall sentence the defendant as it would any other defendant.
764 (6) Expenses for examinations ordered under this section shall be paid in accordance
765with Subsection [77-16a-103(5)] 77-16a-103(8).
766 Section 17. Section 77-16a-201 is amended to read:
767 Part 2. Disposition of Defendants Found Guilty with a Mental Condition
768 77-16a-201. Probation.
769 (1) (a) In felony cases, when the court proposes to place on probation a defendant who 3rd Sub. (Cherry) H.B. 385 02-23-23 7:33 PM
- 26 -
770has pled or is found guilty with a mental [illness] condition at the time of the offense, it shall
771request UDC to provide a presentence investigation report regarding whether probation is
772appropriate for that defendant and, if so, recommending a specific treatment program. If the
773defendant is placed on probation, that treatment program shall be made a condition of
774probation, and the defendant shall remain under the jurisdiction of the sentencing court.
775 (b) The court may not place an offender who has been convicted of the felony offenses
776listed in Section 76-3-406 on probation, regardless of whether the offender has, or had, a
777mental [illness] condition.
778 (2) The period of probation for a felony offense committed by a defendant who has
779been found guilty with a mental [illness] condition at the time of the offense may not be
780subsequently reduced by the sentencing court without consideration of an updated report on the
781mental health status of the defendant.
782 (3) (a) Treatment ordered by the court under this section may be provided by or under
783contract with the department, a mental health facility, a local mental health authority, or, with
784the approval of the sentencing court, any other public or private mental health provider.
785 (b) The entity providing treatment under this section shall file a report with the
786defendant's probation officer at least every six months during the term of probation.
787 (c) Any request for termination of probation regarding a defendant who is receiving
788treatment under this section shall include a current mental health report prepared by the
789treatment provider.
790 (4) Failure to continue treatment or any other condition of probation, except by
791agreement with the entity providing treatment and the sentencing court, is a basis for initiating
792probation violation hearings.
793 (5) The court may not release an offender with a mental [illness] condition into the
794community, as a part of probation, if it finds by clear and convincing evidence that the
795offender:
796 (a) poses an immediate physical danger to self or others, including jeopardizing the
797offender's own or others' safety, health, or welfare if released into the community; or
798 (b) lacks the ability to provide the basic necessities of life, such as food, clothing, and
799shelter, if released into the community.
800 (6) An offender with a mental [illness] condition who is not eligible for release into the 02-23-23 7:33 PM 3rd Sub. (Cherry) H.B. 385
- 27 -
801community under the provisions of Subsection (5) may be placed by the court, on probation, in
802an appropriate mental health facility.
803 Section 18. Section 77-16a-202 is amended to read:
804 77-16a-202. Person found guilty with a mental condition-- Commitment to
805department -- Admission to Utah State Hospital.
806 (1) In sentencing and committing an offender with a mental [illness] condition to the
807department under Subsection 77-16a-104(3)(a) or in a felony case under Subsection
80877-16a-103(6), the court shall:
809 (a) sentence the offender to a term of imprisonment and order that [he] the offender be
810committed to the department and admitted to the Utah State Hospital for care and treatment
811until transferred to UDC in accordance with Sections 77-16a-203 and 77-16a-204, making
812provision for readmission to the Utah State Hospital whenever the requirements and conditions
813of Section 77-16a-204 are met; or
814 (b) [sentence the offender to a term of imprisonment and] order that the offender be
815committed to the department for care and treatment for no more than 18 months, or until the
816offender's condition has been stabilized to the point that commitment to the department and
817admission to the Utah State Hospital is no longer necessary to ensure adequate mental health
818treatment, whichever occurs first. At the expiration of that time, the court [may recall the
819sentence and commitment, and resentence] shall sentence the offender. A [commitment and]
820retention of jurisdiction under this Subsection (1)(b) shall be specified in [the sentencing order.
821If that specification is not included in the sentencing order, the offender shall be committed in
822accordance with Subsection (1)(a).] a court order.
823 (2) The court may not retain jurisdiction, under Subsection (1)(b), over the sentence of
824an offender with a mental [illness] condition who has been convicted of a capital felony. In
825capital cases, the court shall make the findings required by this section after the capital
826sentencing proceeding mandated by Section 76-3-207.
827 (3) When an offender is committed to the department and admitted to the Utah State
828Hospital under Subsection (1)(b), the department shall provide the court with reports of the
829offender's mental health status every six months. Those reports shall be prepared in accordance
830with the requirements of Section 77-16a-203. Additionally, the court may appoint an
831independent examiner to assess the mental health status of the offender. 3rd Sub. (Cherry) H.B. 385 02-23-23 7:33 PM
- 28 -
832 (4) The period of commitment to the department and admission to the Utah State
833Hospital, and any subsequent retransfers to the Utah State Hospital made pursuant to Section
83477-16a-204 may not exceed the maximum sentence imposed by the court. Upon expiration of
835that sentence, the administrator of the facility where the offender is located may initiate civil
836proceedings for involuntary commitment in accordance with Title 62A, Chapter 5, Services for
837People with Disabilities, or Title 62A, Chapter 15, Substance Abuse and Mental Health Act.
838 Section 19. Section 77-16a-203 is amended to read:
839 77-16a-203. Review of offenders with a mental condition committed to
840department -- Recommendations for transfer to Department of Corrections.
841 (1) (a) The executive director shall designate a review team of at least three qualified
842staff members, including at least one licensed psychiatrist, to evaluate the mental condition of
843each offender with a mental [illness] condition committed to it in accordance with Section
84477-16a-202, at least once every six months.
845 (b) If the offender has an intellectual disability, the review team shall include at least
846one individual who is a designated intellectual disability professional, as defined in Section
84762A-5-101.
848 (2) At the conclusion of [its] the review team's evaluation, the review team described
849in Subsection (1) shall make a report to the executive director:
850 (a) regarding the offender's:
851 (i) current mental condition;
852 (ii) progress since commitment; and
853 (iii) prognosis; and
854 (b) that includes a recommendation regarding whether the offender with a mental
855[illness] condition should be:
856 (i) transferred to UDC; or
857 (ii) remain in the custody of the department.
858 (3) (a) The executive director shall notify the UDC medical administrator and the
859board's mental health adviser that an offender with a mental [illness] condition is eligible for
860transfer to UDC if the review team finds that the offender:
861 (i) no longer has a mental [illness] condition; or
862 (ii) has a mental [illness] condition and may continue to be a danger to self or others, 02-23-23 7:33 PM 3rd Sub. (Cherry) H.B. 385
- 29 -
863but can be controlled if adequate care, medication, and treatment are provided by UDC; and
864 (iii) the offender's condition has been stabilized to the point that commitment to the
865department and admission to the Utah State Hospital are no longer necessary to ensure
866adequate mental health treatment.
867 (b) The administrator of the mental health facility where the offender is located shall
868provide the UDC medical administrator with a copy of the reviewing staff's recommendation
869and:
870 (i) all available clinical facts;
871 (ii) the diagnosis;
872 (iii) the course of treatment received at the mental health facility;
873 (iv) the prognosis for remission of symptoms;
874 (v) the potential for recidivism;
875 (vi) an estimation of the offender's dangerousness, either to self or others; and
876 (vii) recommendations for future treatment.
877 Section 20. Section 77-16a-204 is amended to read:
878 77-16a-204. UDC acceptance of transfer of persons found guilty with a mental
879condition -- Retransfer from UDC to department for admission to the Utah State
880Hospital.
881 (1) The UDC medical administrator shall designate a transfer team of at least three
882qualified staff members, including at least one licensed psychiatrist, to evaluate the
883recommendation made by the department's review team pursuant to Section 77-16a-203. If the
884offender has an intellectual disability, the transfer team shall include at least one person who
885has expertise in testing and diagnosis of people with intellectual disabilities.
886 (2) The transfer team shall concur in the recommendation if the transfer team
887determines that UDC can provide the offender with a mental [illness] condition with adequate
888mental health treatment.
889 (3) The UDC transfer team and medical administrator shall recommend the facility in
890which the offender should be placed and the treatment to be provided in order for the offender's
891mental condition to remain stabilized to the director of the Division of Institutional Operations,
892within the Department of Corrections.
893 (4) In the event that the department and UDC do not agree on the transfer of an 3rd Sub. (Cherry) H.B. 385 02-23-23 7:33 PM
- 30 -
894offender with a mental [illness] condition, the administrator of the mental health facility where
895the offender is located shall notify the mental health adviser for the board, in writing, of the
896dispute. The mental health adviser shall be provided with copies of all reports and
897recommendations. The board's mental health adviser shall make a recommendation to the
898board on the transfer and the board shall issue its decision within 30 days.
899 (5) UDC shall notify the board whenever an offender with a mental [illness] condition
900is transferred from the department to UDC.
901 (6) When an offender with a mental [illness] condition sentenced under Section
90277-16a-202, who has been transferred from the department to UDC, and accepted by UDC, is
903evaluated and it is determined that the offender's mental condition has deteriorated or that the
904offender has become mentally unstable, the offender may be readmitted to the Utah State
905Hospital in accordance with the findings and procedures described in Section 62A-15-605.5.
906 (7) Any [person] individual readmitted to the Utah State Hospital pursuant to
907Subsection (6) shall remain in the custody of UDC, and the state hospital shall act solely as the
908agent of UDC.
909 (8) An offender with a mental [illness] condition who has been readmitted to the Utah
910State Hospital pursuant to Subsection (6) shall be transferred back to UDC in accordance with
911the provisions of Section 77-16a-203.
912 Section 21. Section 77-16a-205 is amended to read:
913 77-16a-205. Parole.
914 (1) When an offender with a mental [illness] condition who has been committed to the
915department becomes eligible to be considered for parole, the board shall request a
916recommendation from the executive director and from UDC before placing the offender on
917parole.
918 (2) Before setting a parole date, the board shall request that its mental health adviser
919prepare a report regarding the offender with a mental [illness] condition, including:
920 (a) all available clinical facts;
921 (b) the diagnosis;
922 (c) the course of treatment received at the mental health facility;
923 (d) the prognosis for remission of symptoms;
924 (e) potential for recidivism; 02-23-23 7:33 PM 3rd Sub. (Cherry) H.B. 385
- 31 -
925 (f) an estimation of the dangerousness of the offender with a mental [illness] condition
926either to self or others; and
927 (g) recommendations for future treatment.
928 (3) Based on the report described in Subsection (2), the board may place the offender
929with a mental [illness] condition on parole. The board may require mental health treatment as
930a condition of parole. If treatment is ordered, failure to continue treatment, except by
931agreement with the treatment provider, and the board, is a basis for initiation of parole
932violation hearings by the board.
933 (4) UDC, through Adult Probation and Parole, shall monitor the status of an offender
934with a mental [illness] condition who has been placed on parole. UDC may provide treatment
935by contracting with the department, a local mental health authority, any other public or private
936provider, or in-house staff.
937 (5) The board may not subsequently reduce the period of parole without considering an
938updated report on the offender's current mental condition.
939 Section 22. Section 77-16a-301 is amended to read:
940 77-16a-301. Mental examination of defendant.
941 (1) (a) When the court receives notice that a defendant intends to claim that the
942defendant is not guilty by reason of insanity or that the defendant had diminished mental
943capacity, or that the defendant intends to assert special mitigation under Subsection
94476-5-205.5(2)(a), the court shall order the department to examine the defendant and investigate
945the defendant's mental condition.
946 (b) The person or organization directed by the department to conduct the examination
947shall testify at the request of the court or either party in a proceeding in which the testimony is
948otherwise admissible.
949 (c) Pending trial, unless the court or the executive director directs otherwise, the
950defendant shall be retained in the same custody or status the defendant was in at the time the
951examination was ordered.
952 (2) (a) The defendant shall be available and shall fully cooperate in the examination by
953the department and other independent examiners for the defense and the prosecuting attorney.
954 (b) If the defendant fails to be available and to fully cooperate, and that failure is
955established to the satisfaction of the court at a hearing prior to trial, the defendant is barred 3rd Sub. (Cherry) H.B. 385 02-23-23 7:33 PM
- 32 -
956from presenting expert testimony relating to the defendant's defense of a mental [illness]
957condition at the trial of the case.
958 (c) The department shall complete the examination within 30 days after the court's
959order, and shall prepare and provide to the court prosecutor and defense counsel a written
960report concerning the condition of the defendant.
961 (3) Within 10 days after receipt of the report described in Subsection (2)(c) from the
962department, but not later than five days before the trial of the case, or at any other time the
963court directs, the prosecuting attorney shall file and serve upon the defendant a notice of
964rebuttal of the defense of a mental [illness] condition, which shall contain the names of
965witnesses the prosecuting attorney proposes to call in rebuttal.
966 (4) The report of another independent examiner is admissible as evidence upon
967stipulation of the prosecution and defense.
968 (5) (a) This section does not prevent a party from producing other testimony as to the
969mental condition of the defendant.
970 (b) An expert witness who is not appointed by the court is not entitled to compensation
971under Subsection (7).
972 (6) This section does not require the admission of evidence not otherwise admissible.
973 (7) (a) The department shall pay the expenses of an examination ordered by the court
974under this section.
975 (b) The department shall charge the county where the prosecution is commenced for
976travel expenses associated with an examination incurred by a defendant.
977 (c) The department shall charge the entity commencing the prosecution for an
978examination of a defendant charged with a violation of a municipal or county ordinance.
979 Section 23. Section 77-16a-302 is amended to read:
980 77-16a-302. Persons found not guilty by reason of insanity -- Disposition.
981 (1) Upon a verdict of not guilty by reason of insanity, the court shall conduct a hearing
982within 10 days to determine whether the defendant currently has a mental [illness] condition.
983The defense counsel and prosecutors may request further evaluations and present testimony
984from those examiners.
985 (2) After the hearing and upon consideration of the record, the court shall order the
986defendant committed to the department if it finds by clear and convincing evidence that: 02-23-23 7:33 PM 3rd Sub. (Cherry) H.B. 385
- 33 -
987 (a) the defendant has a mental [illness] condition; and
988 (b) because of that mental [illness] condition the defendant presents a substantial
989danger to self or others.
990 (3) The period of commitment described in Subsection (2) may not exceed the period
991for which the defendant could be incarcerated had the defendant been convicted and received
992the maximum sentence for the crime of which the defendant was accused. At the time that
993period expires, involuntary civil commitment proceedings may be instituted in accordance with
994Title 62A, Chapter 15, Substance Abuse and Mental Health Act.
995 Section 24. Section 77-16a-304 is amended to read:
996 77-16a-304. Review after commitment.
997 (1) (a) The executive director, or the executive director's designee, shall establish a
998review team of at least three qualified staff members to review the defendant's mental condition
999at least every six months.
1000 (b) The team described in Subsection (1)(a) shall include:
1001 (i) at least one psychiatrist; and
1002 (ii) if the defendant has an intellectual disability, at least one staff member who is a
1003designated intellectual disability professional.
1004 (2) If the review team described in Subsection (1) finds that the defendant has
1005recovered from the defendant's mental [illness] condition, or, that the defendant still has a
1006mental [illness] condition but does not present a substantial danger to self or others, the
1007executive director, or the executive director's designee, shall:
1008 (a) notify the court that committed the defendant that the defendant is a candidate for
1009discharge; and
1010 (b) provide the court with a report stating the facts that form the basis for the
1011recommendation.
1012 (3) (a) The court shall conduct a hearing within 10 business days after receipt of the
1013executive director's, or the executive director's designee's, notification.
1014 (b) The court clerk shall provide notice of the date and time of the hearing to:
1015 (i) the prosecuting attorney;
1016 (ii) the defendant's attorney; and
1017 (iii) any victim of the crime for which the defendant was found not guilty by reason of 3rd Sub. (Cherry) H.B. 385 02-23-23 7:33 PM
- 34 -
1018insanity.
1019 (4) (a) The court shall order that the defendant be discharged from commitment if the
1020court finds that the defendant:
1021 (i) no longer has a mental [illness] condition; or
1022 (ii) has a mental [illness] condition, but no longer presents a substantial danger to self
1023or others.
1024 (b) The court shall order the person conditionally released in accordance with Section
102577-16a-305 if the court finds that the defendant:
1026 (i) has a mental [illness] condition;
1027 (ii) is a substantial danger to self or others; and
1028 (iii) can be controlled adequately if conditionally released with treatment as a condition
1029of release.
1030 (c) The court shall order that the commitment be continued if the court finds that the
1031defendant:
1032 (i) has not recovered from the defendant's mental [illness] condition;
1033 (ii) is a substantial danger to self or others; and
1034 (iii) cannot adequately be controlled if conditionally released on supervision.
1035 (d) (i) Except as provided in Subsection (4)(d)(ii), the court may not discharge a
1036defendant whose mental [illness] condition is in remission as a result of medication or
1037hospitalization if it can be determined within reasonable medical probability that without
1038continued medication or hospitalization the defendant's mental [illness] condition will reoccur,
1039making the defendant a substantial danger to self or others.
1040 (ii) Notwithstanding Subsection (4)(d)(i), the defendant described in Subsection
1041(4)(d)(i) may be a candidate for conditional release, in accordance with Section 77-16a-305.
1042 Section 25. Section 77-16a-305 is amended to read:
1043 77-16a-305. Conditional release.
1044 (1) If the review team finds that a defendant is not eligible for discharge, in accordance
1045with Section 77-16a-304, but that [his] the defendant's mental [illness] condition and
1046dangerousness can be controlled with proper care, medication, supervision, and treatment if
1047[he] the defendant is conditionally released, the review team shall prepare a report and notify
1048the executive director, or [his] the executive director's designee, that the defendant is a 02-23-23 7:33 PM 3rd Sub. (Cherry) H.B. 385
- 35 -
1049candidate for conditional release.
1050 (2) The executive director, or [his] the executive director's designee, shall prepare a
1051conditional release plan, listing the type of care and treatment that the individual needs and
1052recommending a treatment provider.
1053 (3) The executive director, or [his] the executive director's designee, shall provide the
1054court, the defendant's attorney, and the prosecuting attorney with a copy of the report issued by
1055the review team under Subsection (1), and the conditional release plan. The court shall
1056conduct a hearing on the issue of conditional release within 30 days after receipt of those
1057documents.
1058 (4) The court may order that a defendant be conditionally released if it finds that, even
1059though the defendant presents a substantial danger to [himself] self or others, [he] the
1060defendant can be adequately controlled with supervision and treatment that is available and
1061provided for in the conditional release plan.
1062 (5) The department may provide treatment or contract with a local mental health
1063authority or other public or private provider to provide treatment for a defendant who is
1064conditionally released under this section.
1065 Section 26. Section 77-16a-306 is amended to read:
1066 77-16a-306. Continuing review -- Discharge.
1067 (1) Each entity that provides treatment for a defendant committed to the department as
1068not guilty by reason of insanity under this part shall review the status of each defendant at least
1069once every six months. If the treatment provider finds that a defendant has recovered from the
1070defendant's mental [illness] condition, or, if the defendant has a mental [illness] condition, no
1071longer presents a substantial danger to self or others, [it] the treatment provider shall notify the
1072executive director of [its] the treatment provider's findings.
1073 (2) Upon receipt of notification under Subsection (1), the executive director shall
1074designate a review team, in accordance with Section 77-16a-304, to evaluate the defendant. If
1075that review team concurs with the treatment provider's assessment, the executive director shall
1076notify the court, the defendant's attorney, and the prosecuting attorney that the defendant is a
1077candidate for discharge. The court shall conduct a hearing, in accordance with Section
107877-16a-302, within 10 business days after receipt of that notice.
1079 (3) The court may not discharge an individual whose mental [illness] condition is in 3rd Sub. (Cherry) H.B. 385 02-23-23 7:33 PM
- 36 -
1080remission as a result of medication or hospitalization if it can be determined within reasonable
1081medical probability that without continued medication or hospitalization the defendant's mental
1082[illness] condition will reoccur, making the defendant a substantial danger to self or others.
1083 Section 27. Section 77-27-2 is amended to read:
1084 77-27-2. Board of Pardons and Parole -- Creation -- Compensation -- Functions.
1085 (1) (a) There is created the Board of Pardons and Parole.
1086 (b) The board shall consist of five full-time members and not more than five pro
1087tempore members to be appointed by the governor with the advice and consent of the Senate in
1088accordance with Title 63G, Chapter 24, Part 2, Vacancies, and as provided in this section.
1089 (c) The members of the board shall be resident citizens of the state.
1090 (d) The governor shall establish salaries for the members of the board within the salary
1091range fixed by the Legislature in Title 67, Chapter 22, State Officer Compensation.
1092 (2) (a) (i) (A) The full-time board members shall serve terms of five years.
1093 (B) The terms of the full-time members shall be staggered so one board member is
1094appointed for a term of five years on March 1 of each year.
1095 (ii) (A) The pro tempore members shall serve terms of five years, beginning on March
10961 of the year of appointment, with no more than one pro tempore member term beginning or
1097expiring in the same calendar year.
1098 (B) If a pro tempore member vacancy occurs, the board may submit the names of not
1099fewer than three or more than five persons to the governor for appointment to fill the vacancy.
1100 (b) All vacancies occurring on the board for any cause shall be filled by the governor
1101with the advice and consent of the Senate in accordance with this section for the unexpired
1102term of the vacating member.
1103 (c) The governor may at any time remove any member of the board for inefficiency,
1104neglect of duty, malfeasance or malfeasance in office, or for cause upon a hearing.
1105 (d) (i) A member of the board may not hold any other office in the government of the
1106United States, this state or any other state, or of any county government or municipal
1107corporation within a state.
1108 (ii) A member may not engage in any occupation or business inconsistent with the
1109member's duties.
1110 (e) (i) A majority of the board constitutes a quorum for the transaction of business, 02-23-23 7:33 PM 3rd Sub. (Cherry) H.B. 385
- 37 -
1111including the holding of hearings at any time or any location within or without the state, or for
1112the purpose of exercising any duty or authority of the board.
1113 (ii) An action is deemed the action of the board if the action is taken by a majority of
1114the board regarding whether:
1115 (A) parole, pardon, commutation, or termination of a sentence is granted in an
1116offender's case;
1117 (B) remission of a criminal accounts receivable, or a fines or forfeiture, is granted in an
1118offender's case; or
1119 (C) an offender's payment schedule for a criminal accounts receivable is modified.
1120 (iii) A majority vote of the five full-time members of the board is required for adoption
1121of rules or policies of general applicability as provided by statute.
1122 (iv) Notwithstanding Subsection (2)(e)(iii), a vacancy on the board does not impair the
1123right of the remaining board members to exercise any duty or authority of the board as long as a
1124majority of the board remains.
1125 (v) A board member shall comply with the conflict of interest provisions described in
1126Title 63G, Chapter 24, Part 3, Conflicts of Interest.
1127 (f) (i) Any investigation, inquiry, or hearing that the board has authority to undertake or
1128hold may be conducted by any board member or an examiner appointed by the board.
1129 (ii) When an action under Subsection (2)(f)(i) is approved and confirmed by the board
1130and filed in the board's office, the action is considered to be the action of the board and has the
1131same effect as if originally made by the board.
1132 (g) (i) When a full-time board member is absent or in other extraordinary
1133circumstances, the chair may, as dictated by public interest and efficient administration of the
1134board, assign a pro tempore member to act in the place of a full-time member.
1135 (ii) Pro tempore members shall receive a per diem rate of compensation as established
1136by the Division of Finance and all actual and necessary expenses incurred in attending to
1137official business.
1138 (h) The chair may request staff and administrative support as necessary from the
1139department.
1140 (3) (a) Except as provided in Subsection (3)(b), the commission shall:
1141 (i) recommend five applicants to the governor for a full-time member appointment to 3rd Sub. (Cherry) H.B. 385 02-23-23 7:33 PM
- 38 -
1142the board; and
1143 (ii) consider applicants' knowledge of the criminal justice system, state and federal
1144criminal law, judicial procedure, corrections policies and procedures, and behavioral sciences.
1145 (b) The procedures and requirements of Subsection (3)(a) do not apply if the governor
1146appoints a sitting board member to a new term of office.
1147 (4) (a) (i) The board shall appoint an individual to serve as the board's mental health
1148adviser and may appoint other staff necessary to aid the board in fulfilling the board's
1149responsibilities under [Title 77, Chapter 16a, Commitment and Treatment of Persons with a
1150Mental Illness] Title 77, Chapter 16a, Commitment and Treatment of Individuals with a Mental
1151Condition.
1152 (ii) The adviser shall prepare reports and recommendations to the board on all persons
1153adjudicated as guilty with a mental [illness] condition, in accordance with [Title 77, Chapter
115416a, Commitment and Treatment of Persons with a Mental Illness] Title 77, Chapter 16a,
1155Commitment and Treatment of Individuals with a Mental Condition.
1156 (b) The mental health adviser shall possess the qualifications necessary to carry out the
1157duties imposed by the board and may not be employed by the department or the Utah State
1158Hospital.
1159 (i) The board may review outside employment by the mental health advisor.
1160 (ii) The board shall develop rules governing employment with entities other than the
1161board by the mental health advisor for the purpose of prohibiting a conflict of interest.
1162 (c) The mental health adviser shall:
1163 (i) act as liaison for the board with the Department of Health and Human Services and
1164local mental health authorities;
1165 (ii) educate the members of the board regarding the needs and special circumstances of
1166persons with a mental [illness] condition in the criminal justice system;
1167 (iii) in cooperation with the department, monitor the status of persons in the prison
1168who have been found guilty with a mental [illness] condition;
1169 (iv) monitor the progress of other persons under the board's jurisdiction who have a
1170mental [illness] condition;
1171 (v) conduct hearings as necessary in the preparation of reports and recommendations;
1172and 02-23-23 7:33 PM 3rd Sub. (Cherry) H.B. 385
- 39 -
1173 (vi) perform other duties as assigned by the board.
1174 Section 28. Section 77-27-5.3 is amended to read:
1175 77-27-5.3. Meritless and bad faith litigation.
1176 (1) For purposes of this section:
1177 (a) "Convicted" means a conviction by entry of a plea of guilty or nolo contendere,
1178guilty with a mental [illness] condition, no contest, and conviction of any crime or offense.
1179 (b) "Prisoner" means a person who has been convicted of a crime and is incarcerated
1180for that crime or is being held in custody for trial or sentencing.
1181 (2) In any case filed in state or federal court in which a prisoner submits a claim that
1182the court finds to be without merit and brought or asserted in bad faith, the Board of Pardons
1183and Parole and any county jail administrator may consider that finding in any early release
1184decisions concerning the prisoner.
1185 Section 29. Section 77-27-10.5 is amended to read:
1186 77-27-10.5. Special condition of parole -- Penalty.
1187 (1) In accordance with Section 77-27-5, the Board of Pardons and Parole may release
1188the defendant on parole and as a condition of parole, the board may order the defendant to be
1189prohibited from directly or indirectly engaging in any profit or benefit generating activity
1190relating to the publication of facts or circumstances pertaining to the defendant's involvement
1191in the criminal act for which the defendant is convicted.
1192 (2) The order may prohibit the defendant from contracting with any person, firm,
1193corporation, partnership, association, or other legal entity with respect to the commission and
1194reenactment of the defendant's criminal conduct, by way of a movie, book, magazine article,
1195tape recording, phonograph record, radio, or television presentations, live entertainment of any
1196kind, or from the expression of the defendant's thoughts, feelings, opinions, or emotions
1197regarding the criminal conduct.
1198 (3) The board may order that the prohibition includes any event undertaken and
1199experienced by the defendant while avoiding apprehension from the authorities or while facing
1200criminal charges.
1201 (4) The board may order that any action taken by the defendant by way of execution of
1202power of attorney, creation of corporate entities, or other action to avoid compliance with the
1203board's order shall be grounds for revocation of parole as provided in Section 77-27-11. 3rd Sub. (Cherry) H.B. 385 02-23-23 7:33 PM
- 40 -
1204 (5) Adult Probation and Parole shall notify the board of any alleged violation of the
1205board's order under this section.
1206 (6) The violation of the board's order shall be considered a violation of parole.
1207 (7) For purposes of this section:
1208 (a) "convicted" means a conviction by entry of a plea of guilty or nolo contendere,
1209guilty with a mental [illness] condition, no contest, and conviction of any crime or offense; and
1210 (b) "defendant" means the convicted defendant, the defendant's assignees, and
1211representatives acting on the defendant's authority.
1212 Section 30. Section 77-36-1.1 is amended to read:
1213 77-36-1.1. Enhancement of offense and penalty for subsequent domestic violence
1214offenses.
1215 (1) As used in this section:
1216 (a) (i) "Convicted" means a conviction by plea or verdict of a crime or offense.
1217 (ii) "Convicted" includes:
1218 (A) a plea of guilty or guilty [and mentally ill] with a mental condition;
1219 (B) a plea of no contest; and
1220 (C) the acceptance by the court of a plea in abeyance under Title 77, Chapter 2a, Pleas
1221in Abeyance, regardless of whether the charge is subsequently reduced or dismissed in
1222accordance with the plea in abeyance agreement.
1223 (iii) "Convicted" does not include an adjudication in juvenile court.
1224 (b) "Criminal mischief offense" means commission or attempt to commit an offense
1225under Section 76-6-106 by one cohabitant against another.
1226 (c) "Offense against the person" means commission or attempt to commit an offense
1227under Title 76, Chapter 5, Part 1, Assault and Related Offenses, Part 2, Criminal Homicide,
1228Part 3, Kidnapping, Trafficking, and Smuggling, Part 4, Sexual Offenses, or Part 7, Genital
1229Mutilation, by one cohabitant against another.
1230 (d) "Qualifying domestic violence offense" means:
1231 (i) a domestic violence offense in Utah; or
1232 (ii) an offense in any other state, or in any district, possession, or territory of the United
1233States, that would be a domestic violence offense under Utah law.
1234 (2) An individual who is convicted of a domestic violence offense is guilty of a class B 02-23-23 7:33 PM 3rd Sub. (Cherry) H.B. 385
- 41 -
1235misdemeanor if:
1236 (a) the domestic violence offense described in this Subsection (2) is designated by law
1237as a class C misdemeanor; and
1238 (b) the individual commits or is convicted of the domestic violence offense described
1239in this Subsection (2):
1240 (i) within 10 years after the day on which the individual is convicted of a qualifying
1241domestic violence offense that is not a criminal mischief offense; or
1242 (ii) within five years after the day on which the individual is convicted of a criminal
1243mischief offense.
1244 (3) An individual who is convicted of a domestic violence offense is guilty of a class A
1245misdemeanor if:
1246 (a) the domestic violence offense described in this Subsection (3) is designated by law
1247as a class B misdemeanor; and
1248 (b) the individual commits or is convicted of the domestic violence offense described
1249in this Subsection (3):
1250 (i) within 10 years after the day on which the individual is convicted of a qualifying
1251domestic violence offense that is not a criminal mischief offense; or
1252 (ii) within five years after the day on which the individual is convicted of a criminal
1253mischief offense.
1254 (4) An individual who is convicted of a domestic violence offense is guilty of a third
1255degree felony if:
1256 (a) the domestic violence offense described in this Subsection (4) is designated by law
1257as a class B misdemeanor offense against the person and the individual:
1258 (i) (A) commits or is convicted of the domestic violence offense described in this
1259Subsection (4) within 10 years after the day on which the individual is convicted of a
1260qualifying domestic violence offense that is not a criminal mischief offense; and
1261 (B) is convicted of another qualifying domestic violence offense that is not a criminal
1262mischief offense after the day on which the individual is convicted of the qualifying domestic
1263violence offense described in Subsection (4)(a)(i)(A) and before the day on which the
1264individual is convicted of the domestic violence offense described in this Subsection (4);
1265 (ii) (A) commits or is convicted of the domestic violence offense described in this 3rd Sub. (Cherry) H.B. 385 02-23-23 7:33 PM
- 42 -
1266Subsection (4) within five years after the day on which the individual is convicted of a criminal
1267mischief offense; and
1268 (B) is convicted of another criminal mischief offense after the day on which the
1269individual is convicted of the criminal mischief offense described in Subsection (4)(a)(ii)(A)
1270and before the day on which the individual is convicted of the domestic violence offense
1271described in this Subsection (4); or
1272 (iii) commits or is convicted of the domestic violence offense described in this
1273Subsection (4) within 10 years after the day on which the individual is convicted of a
1274qualifying domestic violence offense that is not a criminal mischief offense and within five
1275years after the day on which the individual is convicted of a criminal mischief offense; and
1276 (b) (i) the domestic violence offense described in this Subsection (4) is designated by
1277law as a class A misdemeanor; and
1278 (ii) the individual commits or is convicted of the domestic violence offense described
1279in this Subsection (4):
1280 (A) within 10 years after the day on which the individual is convicted of a qualifying
1281domestic violence offense that is not a criminal mischief offense; or
1282 (B) within five years after the day on which the individual is convicted of a criminal
1283mischief offense.
1284 Section 31. Section 77-38-302 is amended to read:
1285 77-38-302. Definitions.
1286 As used in this part:
1287 (1) "Convicted person" means a person who has been convicted of a crime.
1288 (2) "Conviction" means an adjudication by a federal or state court resulting from a trial
1289or plea, including a plea of no contest, nolo contendere, a finding of not guilty due to insanity,
1290or not guilty but having a mental [illness] condition regardless of whether the sentence was
1291imposed or suspended.
1292 (3) "Fund" means the Crime Victim Reparations Fund created in Section 63M-7-526.
1293 (4) "Memorabilia" means any tangible property of a convicted person or a
1294representative or assignee of a convicted person, the value of which is enhanced by the
1295notoriety gained from the criminal activity for which the person was convicted.
1296 (5) "Notoriety of crimes contract" means a contract or other agreement with a 02-23-23 7:33 PM 3rd Sub. (Cherry) H.B. 385
- 43 -
1297convicted person, or a representative or assignee of a convicted person, with respect to:
1298 (a) the reenactment of a crime in any manner including a movie, book, magazine
1299article, Internet website, recording, phonograph record, radio or television presentation, or live
1300entertainment of any kind;
1301 (b) the expression of the convicted person's thoughts, feelings, opinions, or emotions
1302regarding a crime involving or causing personal injury, death, or property loss as a direct result
1303of the crime; or
1304 (c) the payment or exchange of any money or other consideration or the proceeds or
1305profits that directly or indirectly result from the notoriety of the crime.
1306 (6) "Office" means the Utah Office for Victims of Crime.
1307 (7) "Profit" means any income or benefit:
1308 (a) over and above the fair market value of tangible property that is received upon the
1309sale or transfer of memorabilia; or
1310 (b) any money, negotiable instruments, securities, or other consideration received or
1311contracted for gain which is traceable to a notoriety of crimes contract.
1312 Section 32. Section 77-38b-102 is amended to read:
1313 77-38b-102. Definitions.
1314 As used in this chapter:
1315 (1) "Civil accounts receivable" means the same as that term is defined in Section
131677-32b-102.
1317 (2) "Civil judgment of restitution" means the same as that term is defined in Section
131877-32b-102.
1319 (3) (a) "Conviction" means:
1320 (i) a plea of:
1321 (A) guilty;
1322 (B) guilty with a mental [illness] condition; or
1323 (C) no contest; or
1324 (ii) a judgment of:
1325 (A) guilty; or
1326 (B) guilty with a mental [illness] condition.
1327 (b) "Conviction" does not include: 3rd Sub. (Cherry) H.B. 385 02-23-23 7:33 PM
- 44 -
1328 (i) a plea in abeyance until a conviction is entered for the plea in abeyance;
1329 (ii) a diversion agreement; or
1330 (iii) an adjudication of a minor for an offense under Section 80-6-701.
1331 (4) "Criminal accounts receivable" means the same as that term is defined in Section
133277-32b-102.
1333 (5) "Criminal conduct" means:
1334 (a) any misdemeanor or felony offense of which the defendant is convicted; or
1335 (b) any other criminal behavior for which the defendant admits responsibility to the
1336sentencing court with or without an admission of committing the criminal behavior.
1337 (6) (a) "Defendant" means an individual who has been convicted of, or entered into a
1338plea disposition for, criminal conduct.
1339 (b) "Defendant" does not include a minor, as defined in Section 80-1-102, who is
1340adjudicated, or enters into a nonjudicial adjustment, for any offense under Title 80, Chapter 6,
1341Juvenile Justice.
1342 (7) "Department" means the Department of Corrections.
1343 (8) "Diversion agreement" means an agreement entered into by the prosecuting
1344attorney and the defendant that suspends criminal proceedings before conviction on the
1345condition that a defendant agree to participate in a rehabilitation program, pay restitution to the
1346victim, or fulfill some other condition.
1347 (9) "Office" means the Office of State Debt Collection created in Section 63A-3-502.
1348 (10) "Party" means the prosecuting attorney, the defendant, or the department involved
1349in a prosecution.
1350 (11) "Payment schedule" means the same as that term is defined in Section
135177-32b-102.
1352 (12) (a) "Pecuniary damages" means all demonstrable economic injury, losses, and
1353expenses regardless of whether the economic injury, losses, and expenses have yet been
1354incurred.
1355 (b) "Pecuniary damages" does not include punitive damages or pain and suffering
1356damages.
1357 (13) "Plea agreement" means an agreement entered between the prosecuting attorney
1358and the defendant setting forth the special terms and conditions and criminal charges upon 02-23-23 7:33 PM 3rd Sub. (Cherry) H.B. 385
- 45 -
1359which the defendant will enter a plea of guilty or no contest.
1360 (14) "Plea disposition" means an agreement entered into between the prosecuting
1361attorney and the defendant including a diversion agreement, a plea agreement, a plea in
1362abeyance agreement, or any agreement by which the defendant may enter a plea in any other
1363jurisdiction or where charges are dismissed without a plea.
1364 (15) "Plea in abeyance" means an order by a court, upon motion of the prosecuting
1365attorney and the defendant, accepting a plea of guilty or of no contest from the defendant but
1366not, at that time, entering judgment of conviction against the defendant nor imposing sentence
1367upon the defendant on condition that the defendant comply with specific conditions as set forth
1368in a plea in abeyance agreement.
1369 (16) "Plea in abeyance agreement" means an agreement entered into between the
1370prosecuting attorney and the defendant setting forth the specific terms and conditions upon
1371which, following acceptance of the agreement by the court, a plea may be held in abeyance.
1372 (17) "Restitution" means the payment of pecuniary damages to a victim.
1373 (18) (a) "Victim" means any person who has suffered pecuniary damages that are
1374proximately caused by the criminal conduct of the defendant.
1375 (b) "Victim" includes:
1376 (i) the Utah Office for Victims of Crime if the Utah Office for Victims of Crime makes
1377a payment to a victim under Section 63M-7-519;
1378 (ii) the estate of a deceased victim; and
1379 (iii) a parent, spouse, or sibling of a victim.
1380 (c) "Victim" does not include a codefendant or accomplice.
1381 Section 33. Section 78A-2-302 is amended to read:
1382 78A-2-302. Indigent litigants -- Affidavit.
1383 (1) As used in Sections 78A-2-302 through 78A-2-309:
1384 (a) "Convicted" means:
1385 (i) a conviction by entry of a plea of guilty or nolo contendere, guilty with a mental
1386[illness] condition, no contest; and
1387 (ii) a conviction of any crime or offense.
1388 (b) "Indigent" means an individual who is financially unable to pay fees and costs or
1389give security. 3rd Sub. (Cherry) H.B. 385 02-23-23 7:33 PM
- 46 -
1390 (c) "Prisoner" means an individual who has been convicted of a crime and is
1391incarcerated for that crime or is being held in custody for trial or sentencing.
1392 (2) An individual may institute, prosecute, defend, or appeal any cause in a court in this
1393state without prepayment of fees and costs or security if the individual submits an affidavit
1394demonstrating that the individual is indigent.
1395 (3) A court shall find an individual indigent if the individual's affidavit under
1396Subsection (2) demonstrates:
1397 (a) the individual has an income level at or below 150% of the United States poverty
1398level as defined by the most recent poverty income guidelines published by the United States
1399Department of Health and Human Services;
1400 (b) the individual receives benefits from a means-tested government program,
1401including Temporary Assistance to Needy Families, Supplemental Security Income, the
1402Supplemental Nutrition Assistance Program, or Medicaid;
1403 (c) the individual receives legal services from a nonprofit provider or a pro bono
1404attorney through the Utah State Bar; or
1405 (d) the individual has insufficient income or other means to pay the necessary fees and
1406costs or security without depriving the individual, or the individual's family, of food, shelter,
1407clothing, or other necessities.
1408 (4) An affidavit demonstrating that an individual is indigent under Subsection (3)(d)
1409shall contain complete information on the individual's:
1410 (a) identity and residence;
1411 (b) amount of income, including any government financial support, alimony, or child
1412support;
1413 (c) assets owned, including real and personal property;
1414 (d) business interests;
1415 (e) accounts receivable;
1416 (f) securities, checking and savings account balances;
1417 (g) debts; and
1418 (h) monthly expenses.
1419 (5) If the individual under Subsection (3) is a prisoner, the prisoner shall disclose the
1420amount of money held in the prisoner's trust account at the time the affidavit under Subsection 02-23-23 7:33 PM 3rd Sub. (Cherry) H.B. 385
- 47 -
1421(2) is executed in accordance with Section 78A-2-305.
1422 (6) An affidavit of indigency under this section shall state the following:
1423 I, (insert name), do solemnly swear or affirm that due to my poverty I am unable to bear
1424the expenses of the action or legal proceedings which I am about to commence or the appeal
1425which I am about to take, and that I believe I am entitled to the relief sought by the action, legal
1426proceedings, or appeal.
1427 Section 34. Section 78B-7-901 is amended to read:
1428 78B-7-901. Definitions.
1429 As used in this part:
1430 (1) "Conviction" means:
1431 (a) a verdict or conviction;
1432 (b) a plea of guilty or guilty [and mentally ill] with a mental condition;
1433 (c) a plea of no contest; or
1434 (d) the acceptance by the court of a plea in abeyance.
1435 (2) "Immediate family" means the same as that term is defined in Section 76-5-106.5.
1436 Section 35. Section 80-2-1004 is amended to read:
1437 80-2-1004. Request for division removal of name from Licensing Information
1438System -- Petition for evidentiary hearing or substantiation.
1439 (1) Except as provided in Subsection (2), an individual whose name is listed on the
1440Licensing Information System as of May 6, 2002, may at any time:
1441 (a) request review by the division of the individual's case and removal of the
1442individual's name from the Licensing Information System under Subsection (3); or
1443 (b) file a petition for substantiation and a request for a finding of unsubstantiated or
1444without merit in accordance with Section 80-3-504.
1445 (2) Subsection (1) does not apply to an individual who has been the subject of any of
1446the following court determinations with respect to the alleged incident of abuse or neglect:
1447 (a) conviction;
1448 (b) adjudication under Section 80-3-402 or 80-6-701;
1449 (c) plea of guilty;
1450 (d) plea of guilty with a mental [illness] condition; or
1451 (e) no contest. 3rd Sub. (Cherry) H.B. 385 02-23-23 7:33 PM
- 48 -
1452 (3) If an alleged perpetrator listed on the Licensing Information System before May 6,
14532002, requests removal of the alleged perpetrator's name from the Licensing Information
1454System, the division shall, within 30 days after the day on which the request is made:
1455 (a) (i) review the case to determine whether the incident of alleged abuse or neglect
1456qualifies as:
1457 (A) a severe type of child abuse or neglect;
1458 (B) chronic abuse; or
1459 (C) chronic neglect; and
1460 (ii) if the alleged abuse or neglect does not qualify as a type of abuse or neglect
1461described in Subsections (3)(a)(i)(A) through (C), remove the alleged perpetrator's name from
1462the Licensing Information System; or
1463 (b) determine whether to file a petition for substantiation in accordance with Section
146480-3-504.
1465 Section 36. Revisor instructions.
1466 The Legislature intends that the Office of Legislative Research and General Counsel, in
1467preparing the Utah Code database for publication, replace the terms "guilty with a mental
1468illness" and "guilty and mentally ill" with "guilty with a mental condition" in any new language
1469added to the Utah Code by legislation passed during the 2023 General Session.